The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”
Those words were written by Justice Anthony M. Kennedy in the June 12 Supreme Court decision reinstating habeas corpus for Guantanamo detainees. It was a huge victory for civil liberties and the rule of law. It also emphasized a crucial point that has been sadly missed over the last seven years: it is whether we stick to our principles during the most challenging of times - not just the good times - that determines our grit and defines our democracy.
Throughout history, our government has struggled with the impulse to restrict freedom in times of conflict. It is an understandable emotional response, but it is the duty of our nation’s leaders to rise above that and to exercise the wisdom that our founders expressed in the Constitution. From the Alien and Sedition Acts of 1798 to the internment of Japanese-Americans during World War II, hindsight often reveals the damage that is done when we let fear trump freedom. With no regard for this historical record, however, the Bush administration has engaged in rampant abuses of civil liberties under the guise of national security, inflicting tremendous harm upon our constitutional freedoms with no evidence that these abuses have made us any safer.
In fact, the evidence is overwhelming that because the fight against terrorism is, essentially, a war of ideas, recent civil liberties abuses have actually made us less safe. The U.S. Army’s Counterinsurgency Manual asserts that in this kind of “war,” you can’t capture every fighter, but the challenge instead is to diminish the enemy’s ability to recruit new fighters by diminishing its legitimacy while increasing your own. A recent National Intelligence Estimate found that the U.S. must “divide terrorists from the audiences they seek to persuade.” Civil liberties abuses at home and abroad alienate our allies and invigorate our enemies. Moreover, when we violate our own principles with sweeping and untargeted surveillance measures, we divert resources from effective anti-terrorism efforts.
Over the last seven years, we have seen our privacy invaded, our speech chilled and our commitment to due process dishonored. Despite the 1978 Foreign Intelligence Surveillance Act, which permits government surveillance with judicial oversight, President Bush illegally authorized the National Security Agency to spy on innocent Americans without a warrant. Now Congress is on the verge of passing a law that seeks to legalize this unconstitutional spying and to provide immunity to the telecoms that facilitated it in the past.
We have also seen protesters arrested at rallies, citizens who have received “national security letters” gagged from talking about these warrantless surveillance measures, reporters jailed for not revealing their sources and a White House spokesperson warning Americans to watch what they say.
We have witnessed our government narrow its definition of torture to justify its use on detainees in U.S. military custody around the globe. The U.S. also engages in extraordinary rendition - kidnapping individuals and transferring them to countries known to torture. The Guantanamo military commission system, one of the most glaring symbols of injustice, allows the use of hearsay, secret evidence and evidence derived from torture.
We must no longer turn our backs on the foundations of our democracy in favor of shortsighted reaction. It is time once again to be guided by our values, not our fears. Freedom surrendered is not freedom protected.
It is now up to Congress to repair the damage done in the last seven years by passing legislation that is in line with the Constitution, blocking attempts by the executive branch to dodge the rule of law and holding accountable those responsible for some of the most atrocious abuses of power in our time.
It is up to the courts, which must not bow to political pressure, but rather must assert their rightful authority as guardians of the Constitution, fulfilling their responsibility to ensure that the other branches of government adhere to constitutional standards.
It is up to the executive branch to remember that we don’t live in a monarchy and to demonstrate a healthy respect for the rule of law. When the president reminds audiences that his primary job is to keep Americans safe, he should also recall his oath to “protect and defend the Constitution of the United States.”
And it is up to the American people, who must stay informed and demand the best from their elected leaders.
Balancing civil liberties with national security is not a zero-sum game. We can be safe free.
It may not always be easy, but fortunately we have a 221-year-old road map to guide us: It’s called the U.S. Constitution. After all, we must remember what we are fighting for - not just what we are fighting against.
Nadine Strossen is the president of the American Civil Liberties Union.